Ferguson v. Wilson et al
Filing
104
MEMORANDUM OPINION AND ORDER: The court ADOPTS the 102 Proposed Findings and Recommendation by Magistrate Judge Omar J. Aboulhosn; GRANTS defendants' 95 MOTION to Dismiss, or in the Alternative, MOTION for Summary Judgment; DISMISSES plaintiff's 12 Amended Complaint; and directs the Clerk to remove this case from the court's active docket. Signed by Senior Judge David A. Faber on 9/27/2019. (cc: plaintiff and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
KENITHA L. FERGUSON,
Plaintiff,
v.
CIVIL ACTION NO. 1:18-00404
DAVIS WILSON, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings and recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).
Magistrate Judge Aboulhosn submitted to
the court his Findings and Recommendation on April 26, 2019, in
which he recommended that the court grant defendants’ Motion to
Dismiss, or in the Alternative, Motion for Summary Judgment, ECF
No. 95, dismiss plaintiff’s Amended Complaint, ECF No. 12, and
remove this case from the court’s active docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days and three mailing days in
which to file any objections to Magistrate Judge Aboulhosn’s
Findings and Recommendation (“PF&R”).
The failure of any party
to file such objections within the time allowed constitutes a
waiver of such party’s right to a de novo review by this court.
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).
Neither party filed any objections to the Magistrate
Judge’s Findings and Recommendation within the requisite time
period.
However, on May 3, 2019, plaintiff filed a Motion to
Add Evidence.
ECF No. 103.
The court will provide a brief
background on the case, and then will address plaintiff’s
pending Motion, and will treat plaintiff’s claims within the
Motion as objections to the PF&R, where appropriate. 1
I.
Background
On March 16, 2018, plaintiff, an inmate incarcerated at FPC
Alderson and acting pro se, filed a Bivens action against prison
officials, alleging that defendants were improperly denying her
Residential Reentry Center [“RRC”] placement and refusing to
provide her with adequate medical care in violation of the
Eighth Amendment.
ECF No. 7.
Plaintiff later amended her
Complaint, also alleging that defendants retaliated against
plaintiff for filing administrative remedies in violation of the
First Amendment, and that defendants acted with deliberate
It is likely that plaintiff’s Motion to Add Evidence was
drafted before plaintiff received the PF&R, as the Motion
contains no reference to the PF&R and nothing in the Motion is
framed as an objection. However, in order to give plaintiff,
acting pro se, all the possible process due to her, the court
will treat plaintiff’s claims within the Motion as objections to
the PF&R, where appropriate to do so.
2
1
indifference to plaintiff’s depression, callouses on her feet,
and the chronic pain in her neck, shoulders, hands, wrist, and
back.
ECF No. 12.
On February 5, 2019, Defendants’ filed a
Motion to Dismiss, or in the Alternative, Motion for Summary
Judgment, in which they argued that: (1) “Plaintiff failed to
exhaust administrative remedies on some of her allegations”; (2)
“Plaintiff fails to state a viable First Amendment claim”; (3)
“Plaintiff cannot establish an Eighth Amendment violation for
deliberate indifference”; (4) “There is not sufficient personal
involvement necessary to support Eighth Amendment Bivens
liability against supervisory and non-medical Defendants”; (5)
“Plaintiff has no right to a furlough”; and (6) “Defendants are
entitled to qualified immunity.”
ECF No. 95, 96.
Plaintiff
filed a response to defendants’ motion on February 25, 2019.
ECF No. 98.
On April 26, 2019, Magistrate Judge Aboulhosn submitted his
PF&R, in which he found that (1) plaintiff failed to exhaust her
administrative remedies except as to her shoulder and neck
condition; (2) plaintiff’s First Amendment retaliation claim is
not cognizable as a Bivens claim; (3) defendants were not
deliberately indifferent towards plaintiff; (4) plaintiff’s
claims against non-medical defendants failed because Bivens does
not allow vicarious liability claims; and (5) plaintiff’s
constitutional rights were not violated by defendant’s denial of
3
her request for a furlough.
43, 43-46, 46-49.
ECF No. 102, at 19-25, 25-34, 34-
Plaintiff then filed a Motion to Add Evidence
on May 3, 2019, which contained twenty points within a
“Memorandum of Points and Authorities.”
II.
ECF No. 103.
Standard of Review of Pro Se Objections
Pursuant to Fed. R. Civ. P. 72(b), the Court must “make a
de novo determination upon the record . . . of any portion of
the magistrate judge's disposition to which specific written
objection has been made.”
However, the Court is not required to
review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions
of the findings or recommendation to which no objections are
addressed.
See Thomas v. Arn, 474 U.S. 140, 149–50 (1985).
Furthermore, de novo review is not required and unnecessary
“when a party makes general and conclusory objections that do
not direct the court to a specific error in the magistrate's
proposed findings and recommendations.”
Orpiano v. Johnson, 687
F.2d 44, 47–48 (4th Cir. 1982); see also United States v.
Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (“[T]o preserve for
appeal an issue in a magistrate judge's report, a party must
object to the finding or recommendation on that issue with
sufficient specificity so as reasonably to alert the district
court of the true ground for the objection.”); McPherson v.
Astrue, 605 F. Supp. 2d 744, 749 (S.D.W. Va. 2009) (“[F]ailure
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to file a specific objection constitutes a waiver of the right
to de novo review.”).
“A document filed pro se is ‘to be liberally construed.’ ”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
Specifically as to objections
to a PF&R, courts are “under an obligation to read a pro se
litigant's objections broadly rather than narrowly.”
Beck v.
Comm'r of Internal Revenue Serv., 1997 WL 625499, at *1-2
(W.D.N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48).
III. Analysis of Motion to Add Evidence
Even read broadly, plaintiff’s Motion to Add Evidence does
not introduce any new evidence in the case that could be
construed as making an objection to the PF&R by challenging the
factual findings of the magistrate.
In her Motion, plaintiff
lists twenty “memorand[a] of points and authorities,” many of
which refer to medical examination reports that were included as
exhibits to previous filings.
Instead of offering new evidence
as to what occurred in these medical examinations, plaintiff
merely repeated certain statements made during those
examinations that were already in evidence.
To wit, points 1,
2, 5, 6, 7, 8, 9, 10, 15, 18, and 19 specifically cite to
previously filed material as support for the statements made in
plaintiff’s Motion.
See ECF No. 103.
5
After reviewing the cited material in each memoranda point,
the court determines there is no new evidence contained within
the above listed points.
The court further concludes that the
magistrate judge properly considered in his PF&R the material
that plaintiff cites to, as shown by the lengthy procedural
history and summary of the evidence sections in the PF&R, which
include the facts that plaintiff restates in her Motion.
ECF No. 102, at 1-16.
See
These points therefore contain no factual
challenges to the PF&R’s findings, and as such do not constitute
valid objections that require de novo review.
See Orpiano, 687
F.2d at 47 (explaining that when “no factual issues are
challenged, de novo review . . . may be dispensed with”) (citing
Braxton v. Estelle, 641 F.2d 392 (5th Cir. 1981)).
While points 3, 4, 12, 13, 14, 16, 17, and 20 do not
specifically refer to evidence contained in previously filed
documents, points 3, 4, 13, 16, and 20 likewise contain no new
evidence that was not considered by the magistrate judge in the
PF&R. 2
See ECF No. 103.
Therefore, points 3, 4, 13, 16, and 20
Points 3, 4, 16, and 20 contain facts entirely reflected in the
record. See ECF No. 92, Exh. 2 at 20-23 (point 3); id. at 9
(point 4); id. at 45, 214 (point 16); id. at 24-25, 134, 188,
204 (point 20) (documenting that although plaintiff had an
outside doctor advise she wear supportive shoes, there were no
abnormalities in plaintiff’s ankle/foot/toes that qualified her
to have special shoes, and plaintiff was accommodated with shoe
inserts and arch supports).
2
6
also contain no factual challenges to the PF&R’s findings, and
do not constitute valid objections that require de novo review.
Plaintiff’s points 12, 14, and 17 can also be dispensed
with.
Plaintiff’s points 12 and 14 contain medical opinions
regarding proper treatment for her chronic pain and the
debilitating nature of pain generally; as plaintiff is not a
medical expert, her lay opinion is not evidence. 3
Plaintiff’s
point 17 is factually inaccurate: plaintiff claims she was given
no mental health medication, yet the record reflects she made no
mental health complaints to any defendants until April 30, 2018,
Point 13 states that during a June 7, 2018 medical visit
plaintiff told defendants that she was still experiencing pain.
The PF&R and plaintiff’s medical records do not contain records
of a June 7, 2018 visit, but they do detail a May 31, 2018 visit
where plaintiff similarly complained of pain, and she and
defendant Bailey discussed her treatment plan for her chronic
pain. See id. at 8-9. At the May 31 examination, defendant
Bailey continued the conservative treatment and encouraged
plaintiff to remain active, stretch often, and use warm
compresses. Id. at 9. These facts of the May 31 visit,
contained in the medical reports and in the PF&R, mirror those
facts in plaintiff’s point 13 regarding a June 7 visit, and thus
point 13 similarly does not contain new evidence.
Moreover, on point 12, there is evidence from medical experts
that support defendants’ choice of placing plaintiff on a
conservative treatment plan to deal with her chronic pain. See
ECF No. 92, Exh. 2 at 42-43 (defendant Dr. Wright advising a
conservative treatment plan); id. at 213 (plaintiff’s outside
physician Dr. Chris Karas recommending “conservative measures”).
3
As to point 14, there is also ample evidence that shows
defendants appropriately took efforts to decrease plaintiff’s
pain. See, e.g., id. at 61 (documenting that Dr. Bailey
prescribed two pain medications for plaintiff).
7
at which point she was given Zoloft, a mental health medication.
See ECF No. 92, Exh. 2 at 86 (documenting no mental health
complaints); id. at 12-14 (given Zoloft prescription after
asking for mental health medication).
Point 17 also contains a
general conclusory statement as to defendants’ deliberate
indifference, which is not a valid objection.
See Orpiano, 687
F.2d at 47-48 (holding that de novo review is not required and
unnecessary when a party makes general and conclusory
objections).
Plaintiff’s point 11 contains statements challenging the
sufficiency of the medical treatment that defendants gave to
plaintiff.
Specifically, plaintiff asserts that defendants gave
her the “bare minimum treatment” and did not prescribe to her
the medications she was taking prior to incarceration, and thus
defendants “knew what was need[ed] to relieve her pain” but did
not treat her properly.
ECF No. 103, at ¶ 11.
Liberally
construing this claim as an objection to the PF&R’s conclusion
that “[d]efendants did not act with deliberate indifference in
providing medical treatment for [p]laintiff’s conditions,” see
ECF No. 102, at 43, the court will review this claim de novo.
However, plaintiff has not objected in any form to the PF&R’s
findings that Bivens claims require the exhaustion of
administrative remedies and that plaintiff only fully exhausted
her claim of inadequate care involving her shoulder and neck
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pain. See id. at 18-25.
Plaintiff has also not objected to the
PF&R’s findings that Bivens does not impose vicarious liability
on supervisory officials and that the non-medical defendants had
no personal involvement in plaintiff’s claimed Eighth Amendment
violations.
See id. at 43-46.
Therefore, the de novo review
will examine only whether the medical defendants’ treatment of
plaintiff’s shoulder and neck conditions constituted deliberate
indifference.
i.
Medical Defendants Were Not Deliberately Indifferent to
Plaintiff’s Shoulder and Neck Conditions.
Under the Eighth Amendment, incarcerated persons are
entitled to “adequate food, clothing, shelter, sanitation,
medical care and personal safety.”
Wolfish v. Levi, 573 F.2d
118, 125 (2d Cir. 1978), rev’d on other grounds, Bell v.
Wolfish, 441 U.S. 520 (1979).
If an inmate claims that prison
officials disregarded specific known risks to their health or
safety, these claims are analyzed under the Eighth Amendment’s
deliberate indifference standard.
See Moore v. Winebrenner, 927
F.2d 1312, 1316 (4th Cir. 1991) (holding that supervisory
liability may be imposed where prison
supervisors “obdurately,”
“wantonly,” or “with deliberate indifference” fail to address a
known pervasive risk of harm to an inmate’s health or safety).
To establish a violation of the Eighth Amendment in the context
of a challenge to conditions of confinement, an inmate must
9
allege (1) a “sufficiently serious” deprivation under an
objective standard; 4 and (2) that prison officials acted with
“deliberate indifference” to the inmate’s health and safety
under a subjective standard.
297-99 (1991).
Wilson v. Seiter, 501 U.S. 294,
In particular as to this second element,
plaintiff must establish that each defendant “knows of and
disregards an excessive risk to inmate health and safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.”
U.S. 825, 837 (1994).
Farmer v. Brennan, 511
To meet the subjective standard,
plaintiff must allege and establish that each defendant was
aware that there was a substantial risk to plaintiff’s health or
safety and that defendants disregarded the serious physical
consequences.
Based upon the record, plaintiff cannot meet the subjective
standard required to show deliberate indifference.
Every time
plaintiff sought a medical examination for shoulder or neck
pain, defendants provided her with treatment the same day. 5
The
Plaintiff alleges that her condition causes continuous severe
pain and suffering. Accordingly, the court will assume for
purposes of this review of the PF&R that plaintiff’s injuries
were serious enough to give rise to an Eighth Amendment claim.
4
The record reflects that plaintiff complained of neck or
shoulder pain on six visits with defendants:
5
10
On August 16, 2017, plaintiff complained of neck pain while
being evaluated by defendant Bailey. ECF No. 92, Exh. 2 at 93.
Plaintiff was approved by RN Ward for a lower bunk pass, id. at
76, and was also seen later that day by defendant Dr. Wright,
where plaintiff did not again complain of neck pain. Id. at 7881.
On October 19, 2017, plaintiff complained of neck pain and
requested a new nonsteroidal anti-inflammatory drug (“NSAID”) be
prescribed instead of ibuprofen. Id. at 59. In response,
Bailey prescribed two new pain medications that same day, and
advised plaintiff to use Tylenol for cases of “break through
pain.” Id. at 61.
On December 21, 2017, Wright informed plaintiff that the
EMG of plaintiff’s neck returned normal, and that while
plaintiff occasionally gets pain in her neck, this is a result
of a prior surgery and she will have some pain due to that
surgery every so often. Id. at 42. Wright then counseled
plaintiff that irrespective of the treatment plaintiff received
while at home, the best course of treatment was a conservative
management technique that called for NSAIDs, using hot and cold
compresses, and exercise to strengthen her muscles. Id.
On March 29, 2018, plaintiff asked for a muscle relaxer or
Biaxin to deal with severe neck pain and loss of range of motion
in her neck. Id. at 20. Bailey noted that plaintiff’s work
detail supervisor had not heard any complaints from plaintiff,
and that plaintiff had no apparent difficulties completing her
job duties. Id. at 21. Bailey then continued plaintiff’s
conservative treatment plan, and educated plaintiff on range of
motion exercises, band resistance exercises, and the benefits of
gentle stretching and using warm moist compresses. Id. at 22.
On April 12, 2018, plaintiff sought additional medication
for neck pain. Id. at 18. Bailey prescribed a new pain
medication for plaintiff that same day. Id. at 19.
On May 31, 2018, plaintiff complained of pain in her neck.
Id. at 8. Bailey noted that neurologically, plaintiff was
within normal limits and could ambulate without difficulty. Id.
at 9. In response, Bailey continued the conservative treatment
plan, encouraging plaintiff to manage and reduce her pain by
remaining active, stretching, using warm compresses, and by
avoiding high impact activities. Id.
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record contains no indications that defendants knew of and
disregarded plaintiff’s need for medical treatment for her
shoulder or neck condition.
While plaintiff may disagree with
the course of treatment provided to her, an inmate’s
disagreement with her medical care or course of treatment
provided cannot serve as the basis for a deliberate indifference
claim outside exceptional circumstances, which are not present
here.
See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)
(“Disagreements between an inmate and a physician over the
inmate's proper medical care do not state a [Bivens or] § 1983
claim unless exceptional circumstances are alleged.”); Bowring
v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) (“[W]e disavow any
attempt to second-guess the propriety or adequacy of a
particular course of treatment.”).
The fact that, prior to her incarceration, plaintiff’s
“outside” doctors prescribed different medications and/or
advised more aggressive courses of treatment than defendants did
is not grounds for finding that prison officials were
deliberately indifferent.
See Lewis v. Proctor, 2010 WL 148383,
at *3 (S.D.W. Va. Jan. 12, 2010) (an inmate’s “allegations that
one doctor's treatment plan was better than another's . . . do
not state a constitutional claim”).
Even if defendants’
treatment of plaintiff was negligent or amounted to medical
malpractice, this also does not provide the grounds for a
12
deliberate indifference claim.
See Wright, 766 F.2d at 849
(“Negligence or malpractice in the provision of medical services
does not constitute a [constitutional] claim.”).
Therefore, it is evident that plaintiff has not satisfied
the subjective standard required to sustain a claim of
deliberate indifference, and thus any objection formed in
plaintiff’s point 11 is OVERRULED.
IV.
Conclusion
Accordingly, the court adopts the Findings and
Recommendation of Magistrate Judge Aboulhosn as follows:
1.
Defendants’ Motion to Dismiss, or in the Alternative,
Motion for Summary Judgment is GRANTED;
2.
Plaintiff’s Amended Complaint is DISMISSED; and
3.
The Clerk is directed to remove this case from the
court’s active docket.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to plaintiff.
IT IS SO ORDERED this 27th day of September, 2019.
ENTER:
David A. Faber
Senior United States District Judge
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